Wednesday, January 31, 2007

Yesterday's hearing offered interesting insight about how TDCJ uses "trustees" to perform duties in the prison that one would traditionally associate with guards - even running errands in TDCJ trucks outside of the prison grounds.

Chairman Whitmire asked why trusties aren't more frequently considered good candidates for parole? Parole Board Chairwoman Rissie Owens replied that often people plea bargained to a lesser offense and the BPP doesn't think they're as low-level as they're classified. (That view was echoed recently by a writer at the Back Gate.)

That begs the question, though, of why they're trustees with special privileges in the first place if they're more dangerous than the classifications indicate? That question remains unanswered. Only TDCJ could tell us.

TDCJ Chief Brad Livingston implied a more mundane reason why so many trustees remain incarcerated - chronic understaffing at Texas prisons. Prison units with the worst problems retaining employees, said Livingston, are presently operating at 62% staffing capacity. He didn't say so outright, but his comments seemed to suggest that in some cases trustees are filling roles that might be filled by guards if TDCJ could hire enough to staff its facilities.

Whitmire pointed out that of 6,200 inmates currently classified as "outside trustees." 5,700 are already parole eligible. If these people are trustworthy enough to be allowed outside-the-prison privileges, reasoned Whitmire, it's highly likely they're prepared for parole.

He speculated that the reason these trustees weren't paroled more readily was that TDCJ improperly relied on their labor at the expense of their rights, that in fact they were being punished for being model, trustworthy inmates. Nobody from TDCJ had a great answer to that argument.

If it's true, it's pretty grim. And it also means Texas could be shorthanded by up to 5-6,000 guards and support staff, instead of the 3,000 we hear discussed more routinely.

Dominic Gonzales at Texas Criminal Justice Coalition pulled some choice quotes from yesterday's hearing that respond directly to Lt. Gov. Dewhurst's ill-informed assertion that Texas hasn't built enough prisons to match population growth. Check out the short flash video with audio clips from the two chairmen speaking at yesterday's joint meeting between the House Corrections and Senate Criminal Justice Committee.

How fast is Texas' prison population growing? According to Tony Fabelo's presentation at yesterday's hearing, in December 2001 Texas had 6,910 empty prison beds. Indeed, Texas' total empty bed capacity in 2001 was larger than the entire prison capacity in 15 states.

By Feb 2003, just 14 months later, all of those beds were full. As of last year, Texas was renting 1,900 extra beds from county jails. By 2012, said Fabelo, Texas will be 17,000 prison beds short if policies don't change. That rate of growth can't remotely be attributed to Texas population increases.

We have “created the Walmart of prisons in Texas,” Fabelo, who argued for creating a new array of incarceration alternatives that will compete with "Walmart" for the confidence and attention of judges responsible for sentencing.

That's a bit of an odd market analogy, but overall an astute observation, IMO, in more ways than one. Just as Walmart often drives away other businesses, the over-reliance on prisons has caused Texas to de-emphasize approaches that may actually be more effective at reducing crime. Without question that's what's happened in Texas since all the in-prison drug treatment money was gutted in 2003.

The funniest scene from yesterday's joint hearing of the House Corrections and Senate Criminal Justice Committees didn't take place in the meeting room but in the hall outside, where a camera crew from KHOU Houston, a CBS-affiliate tried to get Parole Board Chair Rissie Owens to comment on Dr. Tony Fabelo and Sen. John Whitmire's statements pinning the bulk of Texas' prison overcrowding problems on her agency.

Owens, who wore a deep scowl, wanted no part of that conversation. She power-walked away from them with the reporter trailing behind repeating, "Why are you running away from me Ms. Owens? I just want your reaction."

When she got to the door of the packed room, the reporter caught up with her and repeated his question about her agency's culpability in prison ovecrowding. She grabbed his mike in his hand and shoved it downward while she tried to squirm in sideways into the room. "Please don't touch me or my microphone, Ms. Owens, I just want to ask you a question." She did let go, but by then a space opened up for her to squeeze through, and Rissie Owens was gone.

The next reporter who gets that chance, I hope they also ask Ms. Owens whether she thinks its a conflict of interest that her husband Ed is deputy director of TDCJ, and whether she thinks any of the Sunset recommendations to reduce conflicts of interest on the parole board were because of that relationship?

For those interested, here's a webcast of a Nov. 14, 2006 Sunset Commission hearing where Owens was forced to grumpily and defiantly answer some of those questions in response to Sen. Whitmire. She also responded formally, if again grumpily, in writing to the Sunset Commission's report. See more from Grits on the subject here, here, and here.

If you're in prison but actually innocent, should you lie to the parole board to "take responsibility" and "demonstrate remorse"? Odds are you'd get out a lot quicker, says Medwed. But then should the system be allowed later to admit such statements in court? In this context, Medwed reflects on whether it's wise to hold "assertions of innocence" against prisoners in the parole process and offers reform suggestions. Here's the abstract:

The granting of parole in the criminal justice system is often viewed as an act of grace: the dispensation of mercy by the government to an individual prisoner deemed worthy of conditional release prior to the expiration of his sentence. Yet the criteria upon which state parole boards base these acts of grace, let alone the propriety of using such criteria, has received little scholarly attention and remains something of a mystery to those outside the inner sanctum of parole boards.

Denials of parole are largely unreviewable and courts have held that due process imposes only a minimal burden upon parole boards to reveal the rationales for their decisions. Nevertheless, surveying state parole release decisions and policies demonstrates that, among other factors, a prisoner's willingness to "own up" to his misdeeds - to acknowledge culpability and express remorse for the crime for which he is currently incarcerated - is a vital part of the parole decision-making calculus. That is, admitting one's guilt increases the likelihood of a favorable parole outcome for an inmate whereas proclaiming innocence serves to diminish the chance for release. The main objective of this Article is to consider whether this is wise. Should a prisoner's assertions of innocence be held against him in the parole process?

Part I of this Article briefly discusses the origins of parole in the United States as well as the contemporary features of parole release decision-making. Next, Part II explores how the reliance on prisoner admissions of guilt as part of the parole release decision intersects (and potentially interferes) with the efforts of innocent inmates to win their freedom. Part III then critically examines the theoretical and normative implications of the current parole system's emphasis on remorse and responsibility. Finally, Part IV recommends several specific reforms concerning the treatment of inmate claims of innocence at parole hearings: limiting the use of parole hearing transcripts at future post-conviction proceedings; distinguishing statements of remorse from those of responsibility; and re-conceiving the role played by parole boards in entertaining questions of guilt and innocence.

Tuesday, January 30, 2007

Another stunning fact bite from today's hearing. According to Tony Fabelo, Texas' average parole rates were 78% in 1990 but only 26% today.

In other words, Texas paroles prisoners today at roughly one third the rate as it did just 16 years ago.

“The parole board is not meeting its own guidelines,” said Fabelo. He said that if Texas just followed the minimum end of the guidelines, that would increase the overall parole rate to 31%. That would mean about 2,500 more people released from prison EVERY YEAR. Extended backward, said Fabelo, just meeting these minimums over the past few years would mean Texas would have no overincarceration crisis at all.

Fabelo also said that reducing needless probation revocations combined with parole reforms (and investments in interim-sanctions and DWI facilities) could solve the immediate problems. The 12,240 technical probation revocations in 2006, said Fabelo, will cost the state a total $757.5 million in incarceration costs.

Reducing probation lengths and creating progressive sanctions that give judges alternatives to revocation, said Fabelo, would go a long way toward forestalling the need for more prison building.

Here's another interesting tidbit from Tony Fabelo's testimony this afternoon: Texas' high incarceration rates haven't corresponded with crime reductions enjoyed by other states that incarcerate far fewer people.

Said Fabelo, in 2005 4.6% of Texas adults were in prison, on probation or on parole. The comparable number in California was just 2.8%, in Florida, 3.2%, and in New York, 1.8%.

Now compare those to the same states' relative crime reductions over the period 2000-2005: Texas -19%, California -40%, Florida -31%, New York -54%.

So Texas crime declined, but not nearly as much as states with far fewer people under control of the criminal justice system.

Indeed, to hear Fabelo tell it, Texas prosecutions far outstrip both population increases and the statewide crime rate. In last five years, he said (2000-2005),Texas' population increased 9.6%, the crime rate declined 1.9%, adult arrests increased 5.8%, while felony convictions increased a whopping 29%.

Why would arrests and convictions outstrip crime so dramatically? I don't know the answer, but these data sure raise a lot of interesting questions.

According to Dr. Tony Fabelo speaking at a legislative hearing this afternoon, waiting lists for treatment programs and transitional housing are causing delays in releasing parole eligible offenders from Texas prisons:

The waiting lists, said Fabelo, not only create backlogs but also suppress use of the programs in general because many officials simply don't assign offenders to programs because the wait is too long.

According to Senate Criminal Justice Chairman John Whitmire, 1,900 offenders incarcerated today are eligible for parole but waiting for space in a mandatory six month treatment program to open up before they can be released. Another 1,700 offenders have already been paroled, he said, but cannot be released because the state does not have adequate re-entry programs, halfway houses, etc.

He's been called a Dead Messenger Talking, but Dr. Tony Fabelo (pictured at left) will be walking back into the Texas capitol this afternoon to deliver another message.

Polly Ross Hughes reports in the SA Express News ("Report says treatment could save prison space, money," Jan. 30.) that today's joint House Corrections-Senate Criminal Justice hearing will feature the unveiling of a new report by Fabelo suggesting ways to manage Texas' correctional population to avoid building new prisons. His report:

will recommend saving $377 million by avoiding construction of prisons for up to 5,000 more inmates.

The report estimates its recommendations could save $65 million more by reducing recidivism, helping keep probationers out of prison in the first place and paroling nonviolent substance abusers sooner to halfway houses.

"The Texas prison system is full and predicted to be out of capacity if we do not change policies," said Tony Fabelo, former director of the former Criminal Justice Policy Council.

Fabelo wrote the report, "Justice Reinvestment: A Framework to Improve Effectiveness of Justice Policies in Texas," backed by grants from the State Council on Governments, the Pew Foundation and Justice Department.

"We need to enhance the probation treatment component of the probation system so that we are able to stop the recycling of offenders coming in and out of our prisons," he said.

Fabelo estimated a change in policies could result in a prison population of 155,600 — more than 12,500 less than if the state sticks to current policies.

So Dr. Fabelo thinks we can avoid up to 12,500 new max security beds just by tweaking current policies under existing laws. That tells me that with more significant policy changes like those proposed by the Texas Public Policy Foundation, it might be possible to reduce the rate of increase even further.

See more background on today's joint committee meeting, and check back at Grits later today for updates from the scene.

Monday, January 29, 2007

Put me down as disappointed with this half-a-loaf outcome, and skeptical as to whether it will help or hurt in the long run:

Governor Perry's office today issued a press release announcing the creation of a new Criminal Justice Statistical Analysis Center which will operate out of his office and be run by one of Perry's political operatives, Janna Burleston, who formerly worked for Democratic state Sen. Royce West before entering the Governor's employ. According to the announcing press release:

Perry said, “This center will help us manage our prison population better and attract more federal funds for crime prevention and criminal justice initiatives.”

Under the governor’s order, the SAC will collect, analyze and report statewide criminal justice statistics; evaluate the effectiveness of state-funded initiatives; and disseminate analysis results to practitioners, policy-makers, researchers, and the public in order to enhance the quality of criminal justice and crime prevention at all levels of government.

Gov. Perry’s directive also designates the SAC as the state’s liaison to the U.S. Department of Justice on criminal justice data reporting and research. This designation will make Texas eligible for additional federal criminal justice funding.

The SAC will be housed within the Office of the Governor and will have access to data maintained by the Department of Public Safety, the Texas Department of Criminal Justice, the Texas Juvenile Probation Commission, the Texas Youth Commission, the Texas Department of State Health Services, and other relevant agencies as needed.

Unless you understand a little more about the context of the proposal, perhaps that doesn't sound too bad on its face - maybe a little bland but not negative,

The backstory, though, is that in 2003 Perry line item vetoed the budget for the last similar agency Texas had - the Criminal Justice Policy Council, run for years by statistician Tony Fabelo, now a private consultant. Perry was supposedly unhappy that Fabelo's predictions of rising prisoner populations didn't fall in line with his desire to slash criminal justice funding that year, particularly treatment and programming inside prisons.

With Fabelo and his agency gone, the Legislative Budget Board took over some of these tasks (with about 1/3 the staff), and IMO their work has mightily improved in both depth and relevance since their initial offerings. But they have never had the resources to do everything CJPC once did.

So now we see another unilateral move by the Governor - this time an executive order instead of a line item veto - that would create a new agency to perform those functions and produce "objective" analyses. But the structure of the proposed agency gives very little reason to think it will be "objective."

The Criminal Justice Policy Council was an independent agency not direcly under the Governor's control. (That's why Perry had to line item veto Fabelo's budget - he couldn't just fire him.) The Legislative Budget Board is jointly controlled with the Legislature and Perry's influence is mitigated by the legislative branch of government and its countervailing political weight.

But the new office will have no such independence. That worries me. I'm reminded of Governor Perry's continued useof utterly debunked statistics about crime reduction on the border as recently as last week to promote his Operation Wrangler scheme. The new agency's director will work directly for the Governor, and initially it will be run by someone who to my knowledge has far fewer statistician's credentials and experience than Tony Fabelo.

I like and respect Burleson and worked with her some back when she was Sen. Royce West's aide. But Burleson was the Governor's main point person working with Williamson County DA John Bradley in 2005 to oppose Chairmans Madden and Whitmire's proposals for strengthening probation, which Perry ultimately vetoed. So that would give me pause, for example, if her new office was charged with evaluating the effectiveness of programs she lobbied on behalf of the Governor to oppose. If she said the approach didn't work (after earlier analyses said it did), I'm just not sure I'd believe it. After all, resisting pressure to cook the numbers is what got Fabelo's office de-funded in the first place.

I'm willing to give this new office the benefit of the doubt, but until I become confident we're getting the straight dope from them, my approach will be like that of Ronald Reagan: Trust but verify.

Key legislative leaders were already receptive to reinstating the CJPC in its old form. Personally, I think Perry should have worked with the Legislature to make the new Statistical Analysis Center an independent office to avoid any allegations of political coercion or number-cooking from the get-go.

BLOGVERSATION: Corrections Sentencing has the story of a similar political predicament Michael Connelly found himself in working for a parallel-type agency in Oklahoma. He suggests that in these types of criminal justice statistical centers, " these kinds of interference are not uncommon." That's a grim assessment, but a also a first-hand one that IMO should not be discounted lightly.

Tomorrow afternoon at 2 p.m., the Texas House Corrections and Senate Criminal Justice Committees will hold a rare joint meeting to discuss Chairmans Madden and Whitmire's proposal to avoid building new maximum security prisons.

The stakes for the hearing definitely jumped up a notch or three last week after Lt. Gov. Dewhurst's endorsement of more prison building. One would expect the two chairman to query agency staff about some of Gov. Dewhurst's odd assumptions.

Heading into that hearing, I wanted to recap Grits' recent analyses of interim reports from these two committees and the Sunset Advisory Commission on the major criminal justice issues facing the 80th Texas Legislature: